The problem was first identified in a little-noticed 2016 audit focused on mental health records between June 2014 and February 2016 that found 17 percent of mental health records were “reported late." | George Frey/Getty Images

Background check gap could allow Florida mentally ill to buy guns

TALLAHASSEE — In Florida, a state with some of the nation’s worst mass shootings in recent years, nearly 20 percent of mental health records are entered late into a background check database, a long-running problem state law enforcement officials nowacknowledge could lead to someone with a known mental illness buying a gun.

The lapse, which dates back to at least 2014, went unnoticed by state lawmakers and the governor's office until POLITICO asked about the issue.

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“The risk of late reporting of mental health records is that an individual who is prohibited from purchasing or possession a firearm may be approved at the time of the background check if the disqualifying mental health record is not available,” read Florida Department of Law Enforcement documents fromlast month that are part of an application for U.S. Department of Justice funding to help solve the problem.

The state agency is now asking for $94,880 from the Department of Justice to fund a pilot program in the Miami-Dade Clerk of Courts office. The money would fund a position to identify and enter “disqualifying mental health records within expected timeframes,”according to an outline of FDLE’s request, which was approved last month by the state’s Criminal and Juvenile Justice Information Systems Council. Clerks in each county are responsible for entering mental health records that would disqualify someone from buying a gun into the Florida Mental Competency application, which is overseen by FDLE.

The problem was first identified in a little-noticed 2016 audit focused on mental health records between June 2014 and February 2016. It found 17 percent of mental health records were “reported late." Of the 5,771 records that were late-entered, which means one month after a person was found to have a seriousmental illness or institutionalized, 225 were not entered for between 181 and 365 days, and 61 were not entered for between 366 and 525 days. Disqualifying information is flagged when a judge finds someone a danger to themselves or others, not guilty by reason of insanity, commits them to a mental health treatment facility involuntarily, or finds them incompetent.

In a follow-up done six months later, state auditors reported that in late 2016, counties began telling FDLE they were working to identify mental health records that would disqualify someone from buying a gun that were never entered into the database. As a result, Miami-Dade, Pinellas, and Putnam counties collectively found 300 that had not been submitted. The audit also noted that FDLE and state clerks are working on a multi-year program that will "greatly enhance the entry of records into" the mental health database.

Though the problem has existed since at least mid-2014, Gov. Rick Scott’s office and key lawmakers were not aware the problem had been flagged by state auditors until alerted by POLITICO.

“The Clerk’s Office never made us aware of this,” said McKinley Lewis, a Scott spokesman.

“The Clerks of Court in Florida are locally elected, and the governor expects them to prioritize their resources to quickly resolve this issue,” Lewis added. “FDLE continues to work with the Clerks to supply federal grant funding and ensure criminal justice databases are effectively utilized so law enforcement can work to keep Floridians safe.”

State Rep. Bill Hager (R-Delray Beach), who chairs the House Justice Appropriations Subcommittee, said “no” in a text message when asked if he knew about the late-filed mental health records. He did not respond to follow-up questions.

State Sen. Jeff Brandes (R-St. Petersburg), who is chairman of the Senate Appropriations Subcommittee on Civil and Criminal Justice, said he had just been briefed by staff on the issue recently.

“Mental health screenings as part of these background checks is extremely important to keeping firearms out of the hands of mentally ill individuals,” he said. “I’ve only recently become aware of the staffing shortages impacting those screenings. If a federal grant would help, then I’m encouraging FDLE to apply.”

Funding for state clerks has long been a budget battle. Officials with the Florida Court Clerks and Comptrollers, a state group that represents county clerks, blame budget reductions, not misplaced staffing priorities, for the late-filed mental health records.

“Funding reductions have been a concern for the past several years and we are working with the Legislature to develop a permanent and sustainable statewide funding solution that will address all necessary clerk functions including this one,” said Molly Kellogg-Schmauch, a spokeswoman for the statewide clerk’s organization.

The DOJ funding would be used to start a pilot program in just one of Florida’s 67 counties. When asked what is being done in other counties that have experienced delays, Kellogg-Schmauch only said “clerksfollow a specific process and timeline to report these cases per statute.”

Neither the clerks or FDLE are aware of any situation where someone with a disqualifying mental health condition purchased a gun because of the delay.

Florida, though, is no stranger to mass shootings caused at the hands of gunmen who had interacted with the state’s mental health system. Nikolas Cruz, who in February gunned down 17 people at Parkland’s Marjory Stoneman Douglas High School, was interviewed by staff at a state mental health facility, which decided not to hospitalize him, according to a 2016 Florida Department of Children and Families report.

Cruz legally purchased the AR-15 he used in the attack in February 2017, and “no red flags were raised” during the purchase, according to attorneys for the South Florida gun store where the weapon was purchased.

“There were various questions that were asked of him for self-reporting, one of those questions was whether or not he had been adjudicated for mental illness, or whether you had been institutionalized,” Stuart Kaplan, an attorney representing the gun shop that sold Cruz the firearm, told NBC News after the shooting.